Gwangju District Court 2009Guhap1198 ( December 03, 2009)

early 208 Mine2632 ( December 29, 2008)

Appropriateness of the assertion that it falls under real estate trading business, not capital gains;

It cannot be viewed as business income from the fact that the real estate was held for a relatively long period, and the rental income was used or profit-making by means of raising the value of the real estate itself, and it was not written in order to increase the value of the real estate itself, and that the real estate price has been sold as it was acquired and its profit

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The imposition of capital gains tax of KRW 1,696,078,610 against the plaintiff on January 21, 2008 by the defendant shall be revoked.

1. The point and reason of the instant case;

The key issue of this case is whether the Plaintiff’s income from the transfer of 1/2 shares among the Plaintiff’s factory sites and above-ground factories, and 1/2 shares among the land sites and above-ground houses (hereinafter “instant real estate”) belongs to business income under the Income Tax Act or is subject to capital gains.

As to this, the first instance court calculated the transfer value and acquisition value of the real estate of this case to the original defendant as the actual transaction value and reported and paid the transfer income tax for the year 2006. In light of the fact that the defendant unfairly reported the acquisition value and transfer value in the course of the tax investigation, the plaintiff classified the income from the transfer of the real estate of this case as business income and filed a revised income tax return. ② The plaintiff owned 23 real estate at the time of the transfer of the real estate of this case. The plaintiff acquired 18 real estate among them, and disposed only 5 real estate among the real estate possessed until now, and disposed of within 2 years after the acquisition. Among them, the real estate sold within 2 years after its acquisition is only 2, and the remaining real estate was disposed of by 7 years or 9 years after its acquisition, and ③ The plaintiff used the real estate of this case to acquire profit from the lease of the real estate of this case, the plaintiff appears to have purchased and transferred the real estate for investment purpose, and considering the size or frequency of business activity, it cannot be deemed legitimate by the court.

따라서 이 법원의 판결 이유는, 원고가 이 법원에서 한 새로운 주장에 대하여 다음과 같은 판단을 추가하고, 제1심 판결 제5면 제1행부터 제3행의 '2004. 12. 28. 김AA과 추가하였다.'를 '2004. 12. 28. 김AA과 공동 개인사업자(상호명 BBB타워)로 부동산 임대사업자 등록을 하고 임대사업을 영위하다가, 2006. 7. 24. 소프트웨어 개발업(상호명 BBB네트웍스)을 시작한 다음 2006. 9. 12.에 부동산임대업을, 2007. 11. 20.에 부동산매매업을 부업종으로 추가하였다.'로 고치며, 제l심이 인정한 사실을 뒤집기에 부족한 갑 제9호증, 갑 제10호증의 1, 2, 갑 제12호증의 3, 4, 5의 각 기재를 배척하는 이외에는 제1심 판결문 이유란 기재와 같으므로 행정소송법 제8조 제2항, 민사소송법 제420조 본문에 의하여 이를 그대로 인용한다.

2. Additional determination

A. The plaintiff filed with the Seoul Central District Public Prosecutor's Office an accusation against the plaintiff and KimA as a violation of the Punishment of Tax Evaders Act due to the evasion of capital gains tax. The prosecutor filed a complaint against the director of the Gwangju Regional Public Prosecutor's Office on the ground that the actual offender appears to be KimA. The director of the Gwangju Regional Tax Office deemed the plaintiff and KimA as a real estate sales businessman, and then accused the plaintiff and KimA as a violation of the Punishment of Tax Evaders Act regarding the act of evading the global income tax of KimA. Upon the prosecutor's indictment, the court sentenced KimA as a punishment for violating the Punishment of Tax Evaders Act for 1 year and 2 years in suspended sentence, and the judgment became final and conclusive, unlike the contents of the prosecutor's accusation by the director of the Gwangju Regional Public Prosecutor's office, regarding the plaintiff's income of this case as capital gains tax, contrary to the principle of trust in administration and the head office of the Gwangju Regional Tax Office's investigation agency, or the plaintiff comprehensively delegated KimA with the sale of real estate under the name of the plaintiff.

However, the content that the Defendant filed with the investigative agency as a violation of the Punishment of Tax Evaders Act is deemed to be an actual agent who evaded the comprehensive income tax while conducting real estate sales business of KimA, and the sum of the global income tax evasion tax on the transfer of real estate in the name of the Plaintiff and the global income tax evasion tax on the transfer of real estate in the name of KimA is limited to the designation of KimA as the defendant's employer. In addition, there is no evidence to acknowledge that the Defendant decided the income of the Plaintiff from the transfer of real estate in the name of the Plaintiff as the business income, and it is difficult to view that the Plaintiff's assertion alone

B. In addition, the Plaintiff asserts that the Defendant’s failure to rectify the disposition of capital gains tax on the grounds that the Plaintiff violated the good faith principle on the grounds that the Plaintiff reported and paid capital gains tax on the income of this case without any basis for the actual investigation against the Plaintiff, but reported and reported business income, violates the principle of base taxation under Article 16 of the Framework Act on National Taxes or the principle of substantial taxation under

However, the grounds for the Defendant’s imposition of capital gains tax against the Plaintiff do not constitute a person who continues and repeatedly conducts real estate sales business, and the Plaintiff’s unfair declaration is revealed as a result of tax investigation, and the Plaintiff did not report and pay the income of this case as capital gains tax, and therefore, the Plaintiff’s above assertion is without merit.

3. Conclusion

Therefore, the judgment of the court of first instance dismissing the plaintiff's claim is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.